Judge: Virginia Keeny, Case: 24STCV13755, Date: 2025-03-04 Tentative Ruling
Case Number: 24STCV13755 Hearing Date: March 4, 2025 Dept: 45
DYLAN SCOTT PERRY V. GREYHOUND
LINES, INC., ET AL.
DEMURRER TO COMPLAINT; MOTION TO STRIKE
Date of Hearing: March 4, 2025 Trial Date: N/A
Department: 45 Case No.: 24STCV13755
Moving
Party: Defendants Greyhound
Lines and Flix North America, Inc.
Responding
Party: Plaintiff Dylan Scott Perry
BACKGROUND
Plaintiff Dylan Perry (“Plaintiff”), who is
self-represented, alleges that Defendant Greyhound Lines’ website was set up in
such a way that confused him into purchasing a ticket for the wrong time.
(Compl., p. 3:2-3.) When Plaintiff asked for a refund and demonstrated that it
was no fault of his own, customer service refused to escalate his complaint and
would not refund his ticket. (Compl., p. 3:3-4.) Plaintiff alleges that he was
damaged. (Compl., p. 3:5.) Plaintiff alleges that the customer service
platform, which was implemented by Defendant Greyhound Lines, was intentionally
designed to be deceptive. (Compl., p. 3:7-8.) Plaintiff alleges that the
Greyhound CEO, through an intentional omission, allowed “[G]reyhound to use
this website and customer service platform even though he knew them to be
deceptive.” (Compl., p. 3:9-10.) Plaintiff alleges that such intentional
omission was the cause of his damages. (Compl., p. 3:11.) Plaintiff alleges
that “[t]he company stole [his] money.” (Compl., p. 3:13.) Plaintiff also
alleges that “[t]he company caused [him] to freak out and have a panic attack.”
(Compl., p. 3:14.)
On June 3, 2024, Plaintiff filed a complaint against
Defendants Greyhound Lines, Inc.; Flix North America, Inc.; and CEO in charge
of Greyhound Lines, Inc. acting on January 20, 2023 (Doe Defendant). The
complaint does not set forth any labeled causes of action.
On June 20, 2024, Plaintiff filed a notice of related case
indicating that the instant action is related to Dylan Scott Perry v.
Flixbus Inc., LASC Case No. 23STCV19035, which was filed on August 10, 2023,
and which was dismissed without prejudice.
On August 9, 2024, Defendants Greyhound Lines (“Greyhound”)
(erroneously sued as Greyhound Lines, Inc.) and Flix North America, Inc.
(“Flix”) (collectively, “Defendants”) filed a demurrer to the complaint as well
as a motion to strike. The demurrer is made on the grounds that the complaint
is uncertain and fails to state facts sufficient to constitute any cause of
action against Defendants.
On August 12, 2024, Plaintiff filed an opposition to the
demurrer.
On August 22, 2024, after hearing, the Court granted
Plaintiff’s ex parte application to advance the hearing on the demurrer
and motion to strike. (08/22/24 Minute Order at p. 1.) The Court advanced the
hearing from June 3, 2025 to March 4, 2025. (08/22/24 Minute Order at p. 1.)
On February 25, 2025, Defendants filed a reply brief as to
the demurrer.
As of February 27, 2025, Plaintiff has not filed an
opposition to the motion to strike. Additionally, Defendants did not file a
reply brief to the motion to strike.
Initially, the Court notes that Plaintiff has failed to cite
to any legal authority in the opposition to the demurrer. The Court informs
Plaintiff that “[c]ontentions are waived when a party fails to support them
with reasoned argument and citations to authority. (Moulton Niguel Water
Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.) Thus, due to the lack
of legal authority presented in the opposition, the Court finds that Plaintiff
has conceded to all arguments raised in the demurrer.
[Tentative] Ruling
The Court SUSTAINS the demurrer of Defendants to the
complaint with 20 days leave to amend.
The Court DENIES the motion to strike as MOOT.
LEGAL
STANDARD
A party
may demur to a complaint on the grounds that it “does not state facts
sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd.
(e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th
740, 747.) A party may also demur to a complaint on the grounds that the
complaint is uncertain. (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599,
605.) “[A] demurrer for uncertainty is not intended to reach the failure to
incorporate sufficient facts in the pleading, but is directed at the
uncertainty existing in the allegations actually made.” (Ibid.) “A demurrer for
uncertainty will not lie where the ambiguous facts are presumptively within the
knowledge of the demurring party.” (Ibid.)
When
considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT
Mobile, Inc.
(2010) 185 Cal.App.4th 1068, 1078.) “A demurrer tests the pleadings alone and
not the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v.
Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a
demurrer hearing is whether the complaint, as it stands, unconnected with
extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p.
747.)¿On demurrer, a court does “not accept contentions, deductions or
conclusions of fact or law.” (Simonyan v. Nationwide Insurance Company of America (2022) 78 Cal.App.5th
889, 895.)
Although
courts construe pleadings liberally, sufficient facts must be alleged to
support the allegations pled to survive a demurrer. (Rakestraw v. California
Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.) Where a demurrer is
sustained, leave to amend must be allowed where there is a reasonable
possibility of successful amendment. (Goodman v. Kennedy (1976) 18
Cal.3d 335, 349.) The burden is on the party who filed the pleading subject to
demurrer to show the court that a pleading can be amended successfully. (Ibid.)
“Any
party, within the time allowed to respond to a pleading may serve and file a
notice of motion to strike the whole or any part thereof.” (Code Civ. Proc. §
435(b)(1).) A court may “[s]trike out any irrelevant, false, or improper matter
inserted in any pleading.” (Code Civ. Proc. § 436(a).) A court may “[s]trike
out all or any part of any pleading not drawn or filed in conformity with the
laws of this state, a court rule, or an order of the court.” (Code Civ. Proc. §
436(b).)
DEMURRER
Procedural
Violations
Cal.
Rules of Court, Rule 2.112 require that a complaint must separately label and
identify each cause of action and must identify to whom such cause of action is
directed. (Cal. Rules of Court, Rule 2.112.)
Here,
the complaint does not identify what cause(s) of action is being alleged in the
complaint and fails to identify against whom such cause(s) of action is being
asserted. Thus, the complaint is not in compliance with California Rules of
Court, Rule 2.112.
Additionally,
the Court notes that Plaintiff has attached exhibits to the complaint. However,
Plaintiff has failed to reference or cite to any of the exhibits attached to
the complaint in the body of the complaint.
The
Court acknowledges that Plaintiff is self-represented. However,
self-represented litigants “are held to the same standards as attorneys.” (Kobayashi
v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
Meet
and Confer Requirement
Before filing a demurrer or motion to strike, the
moving party must meet and confer in person, by video conference, or by
telephone with the party who filed the pleading to attempt to reach an
agreement that would resolve the objections to the pleading. (Code Civ. Proc.
§§ 430.41(a), 435.5.) “Any determination by the court that the meet and confer
process was insufficient shall not be grounds to overrule or sustain a
demurrer” or to grant or deny a motion to strike. (Code Civ. Proc. §§
430.41(a)(4), 435.5.)
The meet and confer requirement has been satisfied. Defendants’
counsel attests to meeting and conferring with Plaintiff via telephone prior to
filing the demurrer and motion to strike. (Thomas Decl., ¶ 3.)
Request
for Judicial Notice
Defendants
request that the Court take judicial notice of the following documents: (1) the
complaint and attached exhibits in Dylan Scott Perry v. Flixbus, Inc. dba
Greyhound Bus Lines, LASC Case No. 23STCV19035, filed on or about August
10, 2023 (Exhibit 1); (2) Plaintiff’s motion for leave to file a first amended
complaint, filed on or about April 29, 2024, in Dylan Scott Perry v.
Flixbus, Inc. dba Greyhound Bus Lines, LASC Case No. 23STCV19035 (Exhibit
2); and (3) the notice of related case filed on or about June 20, 2024 in Dylan
Scott Perry v. Greyhound Lines, Inc., et al., LASC Case No.
24STCV13755 (Exhibit 3).
The
Court GRANTS Defendants’ request for judicial notice. (Evid. Code §§ 452, 453.)
The
Complaint is Uncertain
Defendants
contend that the complaint is fatally uncertain and ambiguous. As such,
Defendants contend that the demurrer should be sustained. Plaintiff argues that
the complaint is certain and properly identifies his rights, Defendants’
violations of those rights, and the law that Defendants broke. (Opp’n at p.
2:5-6.) Plaintiff also argues that he served Defendants with discovery on
August 6, 2024. (Opp’n at p. 2:7.)
“[D]emurrers
for uncertainty are disfavored, and are granted only if the pleading is so
incomprehensible that a defendant cannot reasonably respond.” (A.J. Fistes
Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695
[internal quotations omitted].) “A demurrer for uncertainty is strictly
construed, even where a complaint is in some respects uncertain, because
ambiguities can be clarified under modern discovery procedures.” (Ibid.
[internal quotations omitted].)
The
Court references its recitation of the allegations of the complaint from above
and incorporates such allegations herein. The crux of the complaint is that Defendant
Greyhound’s website was set up on a way that confused Plaintiff and caused
Plaintiff to purchase a ticket for the wrong time. (Compl., p. 3:1-5.) Such
fact is the basis for what appears to be the sole unnamed cause of action
articulated in the complaint. (Id.)
The
Court finds that the complaint is uncertain as it does not set forth any
identifiable cause of action. Moreover, even if the complaint did set forth an
identifiable cause of action, Plaintiff has only set forth conclusions of fact
and law. (See Compl. at p. 2.) The Court, however, does not accept conclusions
of fact or law on demurrer pursuant to Simonyan v. Nationwide Insurance Company of
America, supra, 78 Cal.App.5th 889, 895. The complaint also does not allege any
wrongdoing by Defendant Flix and the Court finds that the complaint is
uncertain as to Defendant Flix. The Court fails to see how Defendant Flix can
reasonably respond to the complaint where no allegations are made against such
defendant. The allegations “are [not] sufficiently clear to apprise the
defendant[s] of the issues that must be met . . . .” (Bacon v. Wahrhaftig, supra, 97 Cal.App.2d 599, 605.)
The Court therefore
SUSTAINS the demurrer of Defendants to the complaint on the grounds of
uncertainty.
Plaintiff has Failed to State Facts Sufficient to Constitute a Cause of
Action
“The
elements of a prima facie case for the tort of intentional infliction of
emotional distress are: (1) extreme and outrageous conduct by the defendant
with the intention of causing, or reckless disregard of the probability of
causing, emotional distress; (2) the plaintiff’s suffering severe or extreme
emotional distress; and (3) actual and proximate causation of the emotional
distress by the defendant’s outrageous conduct. Conduct to be outrageous must
be so extreme as to exceed all bounds of that usually tolerated in a civilized
community.” (Wilson v. Hynek (2012)
207 Cal.App.4th 999, 1009 [citation and ellipses omitted].) “Liability for IIED
does not extend to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.” (Crouch v. Trinity Christian Center of
Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007 (Crouch).)
Plaintiff
alleges that he was emotionally distressed. (Compl., p. 2:14-15.) The Court
assumes that such allegation may be an attempt to plead a cause of action for
IIED. However, the complaint fails to plead any facts sufficient to state a
cause of action for intentional infliction of emotional distress.
“The elements of fraud are (a) a misrepresentation (false
representation, concealment, or nondisclosure); (b) scienter or knowledge of
its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e)
resulting damage.” (Hinesley v. Oakshade
Town Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts constituting the
alleged fraud must be alleged factually and specifically as to every element of
fraud, as the policy of “liberal construction” of the pleadings will not
ordinarily be invoked. (Lazar v. Superior
Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiffs
must plead the names of the persons allegedly making the false representations,
their authority to speak, to whom they spoke, what they said or wrote, and when
it was said or written. (Tarmann v. State
Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)
Plaintiff
also alleges that the website of Defendant Greyhound was intentionally
deceptive. (Compl. at p. 2.) To the extent Plaintiff attempted to state a cause
of action for fraud, such attempt was insufficient. Plaintiff’s allegations are
much too conclusory and are not alleged with the required specificity to state
a cause of action for fraud.
As
such, the Court finds that the complaint fails to state a cause of action for
either IIED or fraud. Thus, the Court finds that the complaint fails to state
facts sufficient to constitute any cause of action and the Court SUSTAINS the
demurrer to the complaint on such additional ground.
Leave
to Amend
Here,
Plaintiff has not indicated in the opposition how the complaint can be amended
to state a sufficient cause of action. The Court, however, must grant leave to
amend if there is a reasonable possibility of successful amendment pursuant to Goodman v. Kennedy, supra, 18 Cal.3d 335,
349. Plaintiff may allege facts which, if proven, may state a sufficient cause
of action. The Court therefore will grant leave to amend.
The Court SUSTAINS the
demurrer of Defendants to the complaint with 20 days leave to amend. However—if
and when a First Amended Complaint is filed—Plaintiff is ordered to clearly
identify the cause(s) of action, to clearly identify to whom such causes of
action are directed, and to fully comply with Cal. Rules of Court, Rule 2.112.
MOTION TO STRIKE
Given
that the Court sustained the demurrer to the complaint in its entirety with
leave to amend, the motion to strike is DENIED as MOOT.
CONCLUSION
Based on the foregoing, the Court SUSTAINS the demurrer of
Defendants to the complaint with 20 days leave to amend.
The motion to strike is DENIED as MOOT.
Moving party is ordered to give notice.